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Case 5:17-cv-01239-HNJ Document 34 Filed 08/14/18 Page 1 of 54 FILED

2018 Aug-14 PM 03:02


U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE


NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

ALEXANDRIA KELLEY, )
)
Plaintiff, ) CV No.: 17-cv-1239-HNJ
)
v. ) ORAL ARGUMENT
) REQUESTED
DECATUR BAPTIST CHURCH, )
)
Defendant. )

DEFENDANT’S RENEWED MOTION TO DISMISS, OR IN THE ALTERNATIVE,


MOTION FOR SUMMARY JUDGMENT

Pursuant to Rules 12(b)(1) and 56 of the Federal Rules of Civil Procedure, Defendant

Decatur Baptist Church hereby renews its motion to dismiss this action for lack of subject-matter

jurisdiction, or in the alternative, moves for summary judgment.

Under the Ecclesiastical Abstention Doctrine, this Court lacks subject-matter jurisdiction

to hear the claims stated in Plaintiff Alexandria Kelley’s complaint. The complaint must be

dismissed for this reason under Fed. R. Civ. P. 12(b)(1).

Alternatively, should the Court find that it does have subject-matter jurisdiction, the

complaint still must be summarily dismissed under Fed. R. Civ. P. 56. First, the evidence

establishes that Kelley cannot carry the burden of proof necessary to her claim. While she alleges

Title VII gender discrimination resulting from her termination of employment, the evidence

establishes that Defendant Decatur Baptist Church had a legitimate, nondiscriminatory reason for

terminating her, and Kelley cannot show that the stated reason is merely a pretext for
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discrimination. Because she can point to no genuine issue of material fact on this point, summary

judgment must be granted.

Also, the evidence shows that the ministerial exception defense prohibits this Court from

considering Kelley’s claim. Because there is no genuine issue of material fact on this point, the

complaint should be dismissed for this reason as well.

Defendant’s arguments in support of this motion are more fully set forth in the attached

Memorandum in Support of Renewed Motion to Dismiss, or in the Alternative, Motion for

Summary Judgment, with accompanying affidavits.

DATED: August 14, 2018

Respectfully submitted,

s/David C. Gibbs III


David C. Gibbs III
FL Bar No. 0992062
Attorney for Defendant

s/Rita M. Briles
Rita M. Briles
ASB-4877-R58R
Attorney for Defendant

GIBBS LAW FIRM, P.A.


P.O. 5076
Largo, FL 33779
(727) 362-3700
dgibbs@gibbsfirm.com
rbriles@gibbsfirm.com

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Case 5:17-cv-01239-HNJ Document 34 Filed 08/14/18 Page 3 of 54

IN THE UNITED STATES DISTRICT COURT FOR THE


NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

ALEXANDRIA KELLEY, )
)
Plaintiff, )
)
v. ) CV No.: 17-cv-1239-HNJ
)
DECATUR BAPTIST CHURCH, )
)
Defendant. )

MEMORANDUM IN SUPPORT OF DEFENDANT’S RENEWED MOTION TO


DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

The complaint of Plaintiff Alexandria Kelley must be dismissed for any one of several

reasons. First, this Court does not have subject-matter jurisdiction pursuant to the Ecclesiastical

Abstention Doctrine, so the complaint must be dismissed under Fed. R. Civ. P. 12(b)(1). Should

this Court disagree, Defendant Decatur Baptist Church (the “Church”) is entitled to summary

judgment under Fed. R. Civ. P. 56. The evidence establishes that Kelley cannot carry her burden

of proof because the Church had a legitimate, nondiscriminatory reason for terminating her

employment which she cannot show to be pretextual. The evidence further shows that this Court

is prohibited from deciding this matter under the ministerial exception defense. For each of these

reasons, the Church is entitled to judgment on Kelley’s complaint.

FACTS

A. The Church is a Baptist Church teaching and following Biblical principles.

Decatur Baptist Church is, as identified by its name, a Baptist church. Baptists believe

that the Bible is the inspired Word of God and that it clearly teaches that sexual activity outside

of marriage is immoral. (Affidavit of Danny Holmes (“Holmes Aff.”) attached as Ex. A, at ¶1.)
Case 5:17-cv-01239-HNJ Document 34 Filed 08/14/18 Page 4 of 54

Consistent with its mission, it is of utmost importance that all employees of the Church

agree with, and try to live by, Biblical standards of morality. To that end, the Church has a Policy

Manual addressing this employment requirement. (Transcript of Deposition of Danny Holmes

(“Holmes Depo.”) filed simultaneously herewith, at 15-16, 69-70 & Holmes Depo. Ex. 1.) The

Manual prohibits discrimination in employment with the caveat that “due to the Lord’s stringent

commands in the New Testament… employees and applicants would be required to adhere to the

Creeds, Constitution, and Biblical standards of Decatur Baptist Church.” (Holmes Depo. Ex. 1 at

§202.1.) “If an administrative investigation reveals that an employee has blatantly disregarded the

principles of morality or propriety, then he/she is subject to immediate dismissal.” (Id. at §§601.5,

602.5.)

As Doug Ripley, Senior Pastor of the Church for 33 years, testified: “Every person that

works for us represents us. And because they represent us, we ask them to live according to what

we believe is a Biblical standard of conduct.” (Transcript of Deposition of Doug Ripley (“Ripley

Depo.”) filed simultaneously herewith, at 5, 23.)

B. The Church’s daycare is a direct extension of its religious mission.

Another Biblical doctrine of paramount importance to Baptists is the edict to “train up a

child in the way he should go.” (Holmes Aff. at ¶3.) To a Baptist, that means providing children

with Biblically-sound examples and protecting them as much as possible from non-Biblical

examples so they may learn first-hand what it means to live a Christian life. (Id. at ¶4.) This mission

is so important to the Church that it is written in its Constitution:

Children, from the moment of conception, are a blessing and heritage from the Lord.
Parents are to demonstrate to their children God’s pattern for marriage. Parents are to
teach their children spiritual and moral values and to lead them through consistent
lifestyle example and loving discipline to make choices based on biblical truth.

(Id. at ¶7 & Ex. A-1 at § XVIII.)

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In furtherance of this goal and as part of its ministry outreach, the Church operates a

daycare. (Holmes Aff. at ¶¶2-4; Transcript of Deposition of Mindy Monroe (“Monroe Depo.”),

filed simultaneously herewith, at 11, 19.) As a supplement to the Church’s Policy Manual, the

daycare has its own Staff Handbook which provides:

We are a Christian child care and we are representing our Lord and Savior. We must
do everything with excellence. The children we care for and their parents must come
first. When the children and parents that we serve see our commitment to the place
of service to which the Lord has called us, then we will be the avenue of outreach we
are striving for.

(Monroe Depo. at 9 & Depo. Ex. 3; Holmes Depo. at 17.)

Because this Christian example is paramount, all daycare applicants for employment must

give a statement of faith professing to be Bible-believing Christians. (Monroe Depo. at 11, 34.)

They are required to sign a job description outlining the spiritual, moral, and physical requirements

of the job (“Job Description”). The spiritual requirements include:

Each employee at Decatur Baptist Childcare Center must have received Jesus Christ
as his/her personal Savior and believe that the Bible is God’s word and standard for
faith and daily living. The employee shall be a Christian role model in attitude, speech
and actions towards others. This includes being committed to God’s biblical
standards for sexual conduct (Luke 6:40)…. He/she shall be [in] wholehearted
agreement with the center’s statement of faith and Christian philosophy of education.

(Emphasis added.) (Transcript of Deposition of Alexandria Kelley (“Kelley Depo.”), filed

simultaneously herewith at 39-40 & Depo. Ex. 2; Monroe Depo. at 32-34; Holmes Depo. at 57.)

Once employed, all employees, regardless of their primary duties, bear the same title—

Childcare Worker—and all are required to adhere to the same strict standards of conduct. (Holmes

Depo. at 55-56.) All daycare employees are also required to attend training in which they discuss

the Church policies and Staff Handbook. (Monroe Depo. at 12.)

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The professing faith and exemplary lives of daycare employees are of utmost importance

because they are daily seen by, and interact at varying levels with, the children and parents who

use their services. It is that Christian standard and example that parents rely on when they entrust

their children to the daycare. (Holmes Aff. at ¶5.) In fact, it was that standard that was important

to Plaintiff Alexandria Kelley herself when she enrolled her own child. She testified that she

enrolled her daughter because “she would be in a Christian-based day care that would not only

teach her but teach her the word of God too,” and that one of the things that mattered most to her

was that her child would be taught Christian values. (Kelley Depo. at 29, 31.)

C. As a daycare employee, Kelley committed to adhere to Church policy and


Biblical principles, and was terminated for violating them.

In early 2015, Kelley applied to work at the daycare. She understood that the focus of the

daycare was ministry and that being a Christian was a job requirement. (Kelley Depo. at 29, 41.)

During her application process, she signed the Job Description including the commitment to

“God’s biblical standards for sexual conduct,” and she understood what that meant. (Kelley Depo.

at 39-42 & Depo. Ex. 2; Affidavit of Mindy Monroe (“Monroe Aff.”), attached as Ex. B, at ¶7.)

In reliance upon Kelley’s representations and acknowledgements, she was hired in March

2015. (Monroe Depo. at 20-22.) Although her primary duties were janitorial, she worked during

the day when the children, parents, and church members were present, and she interacted with

them throughout her day. (Kelley Depo. at 47-50, 72; Holmes Depo. at 55.)

On August 17, 2015, Kelley came to Mindy Monroe, the Director of the daycare since

1999, and advised her she had just gotten married 2 days earlier, and that she was 6 weeks pregnant.

(Kelley Depo. at 75; Monroe Depo. at 5-6, 27-29.) Monroe asked Kelley if she understood what

the Bible says about premarital sex. (Monroe Depo. at 29.) In Kelley’s words, Monroe told her

“God doesn’t like that.” (Kelley Depo. at 76, 77, 78.) In fact, Kelley herself admits that she

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recognizes premarital sex is a sin. (Kelley Depo. at 92.) Monroe said she would need to discuss

the situation with Danny Holmes, the children’s pastor. (Monroe Depo. at 29.)

In the ten days that followed, while Pastor Holmes prayed and considered what to do

(Holmes Depo. at 43; Monroe Depo. at 35-36), Kelley began openly discussing her pregnancy

with other daycare workers. (Kelley Depo. at 81-82; Monroe Depo. at 60-65.) It also became

apparent during this time, based on Kelley’s statements to co-workers, that she had been living

with her boyfriend for quite some time before they were married. (Monroe Depo. at 31; Holmes

Depo. at 44; Kelley Depo. at 90.) This caused concern and discord among the employees and

risked the appearance of a double standard if action was not taken. (Monroe Depo. at 63-68.)

Given Kelley’s admitted violation of the spiritual requirements in the Job Description, and

given further her open discussion of it with other employees following her meeting with Monroe,

Holmes decided to terminate her employment. (Holmes Depo. at 51-53.) He informed Senior

Pastor Ripley in advance of his intent to terminate Kelley for immorality and for sowing discord

among the employees, and Ripley agreed. (Ripley Depo. at 13; Holmes Depo. at 60.) On August

27, 2015, Holmes met with Kelley and Monroe. (Kelley Depo. at 199; Monroe Depo. at 60;

Holmes Depo. at 49.) He gave Kelley the Job Description containing the spiritual requirements

regarding sexual conduct and used it as his outline. (Holmes Depo. at 53, 57.) Kelley became upset

and left. (Kelley Depo. at 87; Monroe Depo. at Ex. 9; Holmes Depo. at 53.)

Kelley admits that her memory of the meeting with Holmes and Monroe is unclear, and

she does not fully recall what was said. (Kelley Depo. at 199-200.) In contrast, both Monroe and

Holmes distinctly recall Kelley being told she was terminated for immorality and sowing discord.

(Monroe Depo. at 39, 40, 60; Holmes Depo. at 53.) That is also what Ripley recalls Holmes telling

him prior to the meeting. (Ripley Depo. at 13.) The day after the meeting Monroe, as a matter of

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course and while her memory was fresh, typed out her summary: “On Thursday, August 27th Bro.

Danny and I met with Alex to let her go due to her not upholding her commitment to the biblical

standards. Alex became very upset and stormed out.” (Monroe Depo. at 52 & Depo. Ex. 9.)

D. Undisputed evidence establishes the Church’s consistent treatment of all


employees, including Kelley.

After Kelley was terminated, she filed this lawsuit claiming she was discriminated against

under Title VII of the Civil Rights Act of 1964 for being pregnant and female. Kelley was not

treated differently from anyone else, however. The following facts are undisputed:

∙ During the 16 years the daycare operated prior to Kelley’s termination, at least twenty
married employees either were pregnant when hired, or became pregnant while
employed, and none were terminated for that reason (Monroe Aff. at ¶2);

∙ No daycare employee was ever terminated just for being pregnant (id. at ¶4);

∙ No unmarried, pregnant daycare employee was ever allowed to retain her job (Monroe
Depo. at 42; Monroe Aff. at ¶5);

∙ No daycare employee cohabiting with a partner of the opposite sex, to the extent the
Church was aware of it, was ever allowed to continue employment (Monroe Aff. at ¶6);

∙ Other unmarried daycare employees were terminated when they were found to be living
with partners of the opposite sex, regardless of any pregnancy (Monroe Depo. at 42);

∙ At least one daycare employee quit after being confronted about her male roommate
and would have been fired had she not quit (id. at 55-56);

∙ Two daycare employees were fired for engaging in inappropriate sexual conversations
in front of the children (id. at 57);

∙ At least one other Church employee was terminated for extramarital sex (Holmes Depo.
at 65-66); and

∙ At least two unmarried male maintenance employees were terminated for cohabiting
with a partner of the opposite sex (Ripley Depo. at 15, 19; Holmes Depo. at 66-67).

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Kelley herself admits the following:

∙ She has no firsthand knowledge of any employee who was unmarried and living with
a partner of the opposite sex where the Church was aware but allowed it to continue
(Kelley Depo. at 103, 106);

∙ She has no firsthand knowledge of any employee violating any church policy where
the Church was aware but allowed it to continue (id. at 112-29);

∙ She knows of no other unmarried, pregnant employee who was treated differently from
her (id. at 137);

∙ She knows of no male employee engaged in similar immorality who was treated
differently from her (id. at 141-42); and

∙ She is unaware of any employee being terminated just for being pregnant (id. at 95).

In light of the undisputed evidence, the Church is entitled to dismissal of, or alternatively,

summary judgment on, Kelley’s complaint.

LAW AND ARGUMENT

A. This Court lacks subject-matter jurisdiction over this matter pursuant to the
Ecclesiastical Abstention Doctrine, and Kelley’s complaint must be dismissed
under Fed. R. Civ. P. 12(B)(1).

Initially, this Court must determine its own jurisdiction. In fact, this Court does not have

subject-matter jurisdiction to determine this case.

Federal Civil Rule 12(b)(1) provides for dismissal of a complaint for lack of subject-matter

jurisdiction. “If the court determines at any time that it lacks subject-matter jurisdiction, the court

must dismiss the action.” Fed. R. Civ. P. 12(h)(3).

Under the First Amendment to the Constitution, religious entities must be free to decide

church matters for themselves, uninhibited by state interference. Serbian Eastern Orthodox

Diocese v. Milivojevich, 426 U.S. 696, 709 (1976). For more than a century, the Supreme Court

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has deferred to church authority in religious disputes. Sanchez v. Catholic Foreign Soc’y of Am.,

82 F. Supp. 2d 1338, 1343 (M.D. Fla. 1999); see also Watson v. Jones, 80 U.S. 679, 733-34 (1872).

It is this constitutional mandate from which the Ecclesiastical Abstention Doctrine was

birthed. The Doctrine prohibits judicial review of religious doctrine, or judicial resolution of

internal church disputes concerning the interpretation or application of religious doctrine. Garcia

v. Church of Scientology Flag Serv. Org., 2015 U.S. Dist. LEXIS 178033, *11-12 (M.D. Fla. Mar.

13, 2015). “‘Within the context of ecclesiastical discipline, churches enjoy an absolute privilege

from scrutiny by the secular authority.’” Ex parte Bole, 103 So.3d 40, 59 (Ala. 2012) (quoting

Trice v. Burress, 137 P.3d 1253, 1258 (Okla. Civ. App. 2006)). This constitutional privilege is lost

only where there is “an immediate threat to ‘the public safety, peace or order.’” Id. (quoting Trice,

supra.) The rule is that courts “should be loath to assert jurisdiction over internal church disputes”

and “its exceptions are rare.” Id. at 55. Where the doctrine applies, the court lacks subject-matter

jurisdiction. Serbian E. Orthodox Diocese, 426 U.S. 696 at 713-14.

While courts do have subject-matter jurisdiction to resolve disputes involving religious

organizations, they may only do so on neutral principles of law where the court’s decision does

not involve doctrinal matters. Jones v. Wolf, 443 U.S. 595, 602 (1979). Not all matters can be

considered in isolation, however. For example, a court must decline to consider a termination claim

where it is “‘impossible to consider the plaintiffs’ allegations… in isolation, separate and apart

from the church[’s] decision to terminate [the plaintiff’s] employment.’” Ex parte Bole, 103 So.3d

at 63 (quoting Heard v. Johnson, 810 A.2d 871, 884 (D.C. 2002)).

This case presents precisely the kind of issue that the Constitution prohibits this Court from

examining. While Kelley contends she was terminated for being pregnant, it is undisputed that her

extramarital sexual activity violated the Biblical standards by which the Church required all its

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employees to operate. For a secular court to review the propriety of her dismissal would “‘only

produce by its coercive effect the very opposite of that separation of church and State contemplated

by the First Amendment.’” Sanchez, 82 F. Supp. 2d at 1343 (quoting McClure v. Salvation Army,

460 F.2d 553, 560 (5th Cir. 1972)).

Under the long-held Ecclesiastical Abstention Doctrine, this Court lacks subject-matter

jurisdiction to second-guess the Church’s decision to terminate Kelley. Kelley’s invitation for this

Court to insert itself in the Church’s decision must be declined, and her complaint dismissed.

B. This Court should grant summary judgment to the Church pursuant to


Fed. R. Civ. P. 56.

If this Court determines for some reason that the Ecclesiastical Abstention Doctrine does

not apply, summary judgment still must be granted to the Church. Under Fed. R. Civ. P. 56(c),

summary judgment is proper if the evidence in the case establishes that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of law. The

party seeking summary judgment bears the initial burden to set forth evidence demonstrating the

absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If

that burden is met, the nonmoving party must establish that there is a genuine issue of material

fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). The

nonmoving party may not simply rely on its pleading but must provide “specific facts showing

that there is a genuine issue for trial.” Celotex, 477 U.S. at 324.

The United States Supreme Court has observed: “One of the principal purposes of the

summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and

we think it should be interpreted in a way that allows it to accomplish this purpose.” Id. at 323-24.

“[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time

for discovery and upon motion, against a party who fails to make a showing sufficient to establish

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the existence of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” (Emphasis added.) Id. at 322.

Applying this standard, the Church’s summary judgment motion must be granted because

Kelley cannot present evidence sufficient to establish the necessary elements of her claim, and

because the Church has established the ministerial exception defense.

1. Kelley cannot carry her burden of proof under McDonnell Douglas because she cannot
show that the Church’s nondiscriminatory reason for terminating her was pretextual.

The seminal case explaining the burden-shifting scheme for Title VII actions is McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that scheme, Kelley must first prove her

prima facie case by a preponderance of the evidence. Texas Dep’t. of Cmty. Affairs v. Burdine, 450

U.S. 248, 253 (1981). A prima facie case of pregnancy discrimination requires Kelley to show

that: (1) she was pregnant; (2) she was qualified for the job; (3) she was subjected to an adverse

employment decision; and (4) there is a nexus between her pregnancy and the decision. LaFleur

v. Westridge Consultants, Inc., 844 F. Supp. 318, 324 (E.D. Tex. 1994).

If Kelley establishes her prima facie case, the Church may then rebut her evidence by

showing that it had a legitimate, nondiscriminatory reason for terminating her. Burdine, 450 U.S.

at 254. If the Church satisfies that burden, the McDonnell Douglas presumption of intentional

discrimination “drops out of the picture.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511

(1993). The burden shifts back to Kelley to prove by a preponderance of the evidence that the

Church’s stated reason is merely pretextual. McDonnell Douglas, 411 U.S. at 804; Burdine, 450

U.S. at 253. She “cannot succeed by simply quarreling with the wisdom of that reason,” and courts

“cannot and will not second-guess the wisdom of an employer’s decision.” Melton v. Nat’l Dairy

LLC, 705 F. Supp. 2d 1303, 1320-21 (M.D. Ala. 2010).

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The Church explained that it terminated Kelley not because she was pregnant, but because

she undisputedly violated Biblical standards of morality, Church policy, and her own Job

Description. Having set forth a legitimate, nondiscriminatory reason, Kelley must prove by a

preponderance of the evidence that the reason is mere pretext. This she cannot do.

The case of Boyd v. Harding Acad., 887 F. Supp. 157 (W.D. Tenn. 1995) is instructive.

Boyd alleged Title VII discrimination after she was terminated as a preschool teacher. Id. at 158.

Identical to Kelley, the unwed Boyd claimed she was discharged because of her pregnancy. Id. at

158. Identical to the Church, Harding Academy explained that Boyd’s termination was due to her

violation of the religious tenet proscribing sex outside of marriage. Id. at 160. Boyd claimed the

Academy’s explanation was pretextual. Id. at 160.

The court disagreed. Significant to its analysis was the faculty handbook given to Boyd

when she was hired containing a statement of Christian character, rendering unpersuasive her

claim that she was never told she would be terminated for engaging in sex outside of marriage. Id.

at 158, n. 1. Also significant was Boyd’s admission that she knew of no Christian organization that

taught that extramarital sex was appropriate or moral. Id. Further significant to the court’s analysis

was the Academy’s consistent treatment of all employees. The court wrote:

Based on… the fact that Harding Academy has consistently discharged both male
and female employees who engaged in sex outside of marriage, whether or not
pregnancy resulted from the conduct, the Court finds that plaintiff has failed to show
that defendant’s proffered nondiscriminatory reason for plaintiff’s termination was
mere pretext for gender discrimination. Plaintiff having failed to sustain her burden
of proof in this case, plaintiff’s claim of gender discrimination under Title VII must
be DENIED, and a judgment must be entered in favor of the defendant.

Id. at 162.

On appeal, the Sixth Circuit found this latter point particularly dispositive. It observed that

there was no evidence that the Academy was ever aware of extramarital sexual activity but failed

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to take action; there were numerous instances where married employees became pregnant and

retained their jobs; and there was no evidence the policy was applied in a discriminatory manner.

Boyd v. Harding Acad., 88 F.3d 410, 412 (6th Cir. 1996). The Sixth Circuit held:

We conclude that the district court was correct in holding that defendant articulated
a legitimate, non-discriminatory reason by stating that it fired plaintiff Boyd not
because she was pregnant, but for engaging in sex outside of marriage, and that
plaintiff Boyd did not meet her burden to prove by a preponderance of the evidence
that this articulated reason was actually a pretext for illegal discrimination.

Id. at 414-415.

All the facts found relevant in Boyd are true here. Regardless whether Kelley was expressly

told she would be terminated for extramarital sex, she admitted during her application process she

received, signed, and understood the Job Description stating the spiritual job requirement of a

commitment “to God’s biblical standards for sexual conduct.” She agreed that extramarital sex is

a sin. (Kelley Depo. at 92.) She admitted that when she told Monroe of her unwed pregnancy,

Monroe stated—using Kelley’s words—“God doesn’t like that.” (Id. at 76.) While many married

employees became pregnant but were not discharged, the Church consistently discharged both

male and female employees for extramarital sex or cohabitation regardless of pregnancy.

Just as in Boyd, Kelley cannot establish by a preponderance of the evidence that the

Church’s legitimate, nondiscriminatory reason for terminating her is pretextual. Because she

cannot carry her burden, the Church is entitled to summary judgment. See Melton, 705 F. Supp.

2d at 1315, 1321 (“summary judgment must be granted” where plaintiff in discrimination action

cannot show defendant’s proffered reason is pretextual).

The undisputed evidence establishes that the Church acted consistently with all its

employees: male or female, pregnant or not. The Church has stated a legitimate, nondiscriminatory

reason for terminating Kelley, and Kelley has no evidence that the reason is pretextual. Because

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she cannot carry her burden, she cannot prevail on her discrimination claim. There is no genuine

issue of material fact and the Church is entitled to summary judgment.

2. The Church has established its ministerial exception defense.

Closely related to the Ecclesiastical Abstention Doctrine is the ministerial exception

defense. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188, 195

(2012). The ministerial exception defense exempts from Title VII actions a church’s employment

relationship with some of its employees. Id. at 188-190.

The relationship between a church and its ministers “is its lifeblood.” Gellington v.

Christian Methodist Episcopal Church, 203 F.3d 1299, 1304 (11th Cir. 2000) (quoting McClure

v. Salvation Army, 460 F.2d 553, 558 (5th Cir. 1972)). “[A] flat prohibition on court interference

with employment decisions makes sense because the judiciary is particularly ill-equipped to

conduct a post-hoc inquiry into whether an employment dispute between a minister and a religious

organization is premised on secular rather than religious grounds.” Nolen v. Diocese of

Birmingham in Ala., 2017 U.S. Dist. LEXIS 141496, *7 (N.D. Ala. Sept. 1, 2017).

Despite its name, the ministerial exception is readily extended to employees other than

ministers. Ross v. Metro. Church of God, 471 F. Supp. 2d 1306, 1309 (N.D. Ga. 2007). Courts

focus on the function of the position rather than the title. Id. at 1309-10 (citing Rayburn v. Gen.

Conference of Seventh-Day Adventists, 772 F.2d 1164, 1168 (4th Cir. 1985)). If the position is

“important to the spiritual and pastoral mission of the church,” the employee may be considered a

minister for purposes of the exception. Id. at 1310. An employee may qualify even if she “routinely

performs administrative tasks in addition to her ministerial duties.” Nolen, 2017 U.S. Dist. LEXIS

141496 at *8-9 (citing Hosanna-Tabor, 565 U.S. at 193).

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“The more pervasively religious an institution is, the less religious the employee’s role

need be in order to risk first amendment infringement.” Weissman v. Congregation Shaare Emeth,

839 F. Supp. 680, 684 (E.D. Mo. 1993). This sliding-scale makes sense because “employees of

religious institutions such as churches and synagogues are likely to be inherently involved in

religious activity… regardless of the nature of the employees’ specific responsibilities.” Musante

v. Notre Dame of Easton Church, 2004 U.S. Dist. LEXIS 5611, *19 (D. Conn. Mar. 30, 2004).

A church is the most religious of institutions and here, the Church’s daycare is a direct

extension of its religious mission. Allowing anyone to remain employed in the daycare when the

Church is aware they are leading a non-Biblical lifestyle is in direct conflict with the Constitution

and mission of the Church and its daycare, and would invite legitimate questions about what the

Church truly believes and stands for.

Although Kelley’s primary duties were janitorial, she did not work after hours when no

one was present. To the contrary, Kelley was daily seen by, and interacted with the most easily-

influenced population—the children—as well as their parents who chose the daycare for the very

purpose of providing their impressionable children with a positive, Christian influence. For this

reason, the Church considered all its daycare workers ministers—a direct reflection of the Church

and of Christ—and its need to terminate Kelley for immorality and sowing discord is exactly the

type of decision with which this Court is prohibited to interfere.

Determining Kelley’s claim necessarily requires inquiry into the reasons underlying her

termination, which in turn requires an examination of the Church’s religious doctrine and practice.

The inquiry would necessarily equate to governmental interference into the internal management

of the Church and as such, it is barred by the ministerial exception to Title VII.

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CONCLUSION

Under the Ecclesiastical Abstention Doctrine, this Court lacks subject-matter jurisdiction

over Kelley’s complaint and it must be dismissed. Alternatively, summary judgment must be

granted because there is no genuine issue of material fact that Kelley cannot carry her McDonnell

Douglas burden, and that the ministerial exception defense bars consideration of this case. For

each of these reasons, the Church respectfully requests that Kelley’s complaint be dismissed.

DATED: August 14, 2018

Respectfully submitted,

s/David C. Gibbs III


David C. Gibbs III
FL Bar No. 0992062
Attorney for Defendant

s/Rita M. Briles
Rita M. Briles
ASB-4877-R58R
Attorney for Defendant

GIBBS LAW FIRM, P.A.


P.O. 5076
Largo, FL 33779
(727) 362-3700
dgibbs@gibbsfirm.com
rbriles@gibbsfirm.com

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CERTIFICATE OF SERVICE

I certify that true and accurate copies of Defendant’s Renewed Motion to Dismiss, or in

the Alternative, Motion for Summary Judgment; Memorandum in Support of Defendant’s

Renewed Motion to Dismiss, or in the Alternative, Motion for Summary Judgment; and exhibits

thereto were served upon the following party of record by filing these documents with the Clerk

of the Court using the CM/ECF system on this 14th day of August 2018.

Jay E. Emerson
Higgs & Emerson
405 Franklin Street
Huntsville, AL 35801

Attorney for the Plaintiff

s/David C. Gibbs III


David C. Gibbs III

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EXHIBIT A

AFFIDAVIT OF
DANNY HOLMES
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EXHIBIT A-1
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DECATUR 97
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DECATUR 98
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DECATUR 99
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DECATUR 100
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DECATUR 101
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DECATUR 102
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DECATUR 103
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DECATUR 104
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DECATUR 105
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DECATUR 106
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DECATUR 107
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DECATUR 108
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DECATUR 109
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DECATUR 110
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DECATUR 111
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DECATUR 112
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DECATUR 113
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DECATUR 114
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DECATUR 115
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DECATUR 116
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DECATUR 117
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DECATUR 118
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DECATUR 119
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DECATUR 120
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DECATUR 121
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DECATUR 122
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DECATUR 123
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DECATUR 124
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DECATUR 125
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EXHIBIT B

AFFIDAVIT OF
MINDY MONROE
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